1816263 (Migration)

[2020] AATA 2158

1816263 (Migration) [2020] AATA 2158 (11 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1816263

MEMBER:Christopher Smolicz

DATE:11 March 2020

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 11 March 2020 at 3:15pm

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information in protection visa application – citizenship – identity – family composition – identity documents – validity of Pakistan citizenship and residence – Afghan nationality never renounced – dual citizenship – voluntarily returns to Pakistan – refugee risk profiles – mistreatment from the Taliban and Pashtuns – Hazara ethnicity – Shia religion – Article 33 refoulement – decision under review set aside   

LEGISLATION

Migration Act 1958, ss 5(1), 101, 107, 109
Migration Regulations 1994, r 2.41; Schedule 2

CASES

AZK15 v MIBP [2015] FCA 1444
DMH16 v MIBP [2017] FCA 448
MIAC v Khadgi (2010) 190 FCR 248

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant arrived in Australia [in] June 2009 and identified himself as [the applicant’s name], an Afghan national of Shia religion and Hazara ethnicity born in [year].

3. On 31 May 2018 a delegate of the Minister cancelled the applicant’s protection visa, on the basis that he considered the applicant had given incorrect information in his protection visa application about his citizenship, names he had been known by, family composition and family members in Australia.

   THE REVIEW PROCEEDING

4. The applicant appeared before the Tribunal on 17 January 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review by his registered migration agent.

5. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Non-disclosure certificate

7. As a preliminary issue the Tribunal has before it the Departmental file relating to the cancellation of the applicant’s visa. The delegate has placed restrictions on some of the material given to the Tribunal by the Department of Immigration (the Department) under s.375A of the Act.

8. Specifically the certificate dated 26 June 2018 states that disclosure of folios 6 to 31 would be contrary to the public interest because it would disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law. The documents evidence investigations undertaken by the Department in relation to the applicant and other persons. The certificate also states that disclosure of the file cover would endanger the life or physical safety of a person.

9. The Tribunal has considered the certificate and the reasons why it was issued in respect of the specified folios. The Tribunal has formed the view that the certificate is valid.

10. The Tribunal wrote to the applicant and provided him with a copy of the certificate seeking his comments. The applicant did not make any comments in response to the Tribunal letter. The Tribunal discussed the gist of the adverse material contained in the certificated documents with applicant at the hearing. The applicant’s representative confirmed that he is aware of the documents and did not make any further comments.

    LEGISLATIVE FRAMEWORK

11. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

12. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.

    Did the notice comply with the requirements in s.107? 

13. The s.107 notice is dated 29 December 2017 and was sent to the applicant by registered post.

14. The notice sets out in detail the information given by the applicant in his protection visa application which is now said to be incorrect, as well as particulars of the basis on which that information is now said to be false. The Tribunal is satisfied that information is set out in enough detail to allow the applicant to understand and respond to the non-compliance allegation.

15. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

    Was there non-compliance as described in the s.107 notice?

16. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled.

17. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.101(b) and can be summarised as follows.

18. The applicant arrived on Christmas Island [in] June 2009 as an Irregular Maritime Arrival (IMA). In his Entry Interview conducted on 11 July 2009 he claimed his name was [the applicant’s name] born [in year] in Afghanistan and that he was an Afghan citizen.

19. On 14 September 2009 the applicant applied for a Class XA Subclass 866 Protection visa. In support of the application he provided a statutory declaration dated 1 August 2009 in which he provided further information in support of his claims. The visa was granted on 16 September 2009.

20. On 14 January 2014 the applicant lodged an application for Australian Citizenship by conferral.

21. On 17 January 2017 the visa holder was issued a written invitation to comment on the adverse information relating to his application for conferral of Citizenship. He provided a response on 12 February 2017.

22. Specifically the notice alleges the applicant answered the following questions incorrectly in his protection visa application form 866.

23. Question 9 Part B – when asked whether there are any members of his family unit who were not in Australia at the time of application the applicant answered he had a daughter named [Ms A] born [on date] residing in Pakistan.  In his reply to the Citizenship delegate he stated [Ms A] is his daughter-in-law and he claimed she was his daughter in order that she could later sponsor [Son A] [the applicant’s son] for a visa to Australia.

24. Question 10 of Part B – he claimed to have no close relatives in Australia at the time he lodged the protection visa application, however according to Departmental records his daughter [Daughter A] born [date], was living in Australia the majority of the time since [September] 2006.

25. Question 11 of Part B – he claimed he had no close relatives who are not in Australia at the time he lodged his protection visa application. However, based on his reply to the Citizenship delegate he advised he had another son named [Son A] living in Pakistan whom he had not declared in his protection visa application.

26. Question 12 of Part B – asked the applicant to list all the documents he was providing with the application. The applicant declared he had never obtained any form of identification as he was living in a very isolated area. In his reply to the Citizenship delegate he advised he had obtained a Pakistani National Identity Card (NIC) in 1980 after he entered Pakistan.

27. Question 4 of Part C – asked what other names had the applicant been known by. The applicant answered that he had not been known by any other names besides [the applicant’s name], however in his reply to the Citizenship delegate he confirmed he obtained a Pakistani NIC after he entered Pakistan in 1980 in the name [Alias 1]. In addition his daughter [Daughter A’s] birth certificate issued in [year] also shows this is her father’s name, indicating he was formally registered and known to the Pakistani authorities under that name for nearly 30 years prior to lodging the protection visa application.

28. Question 21 of Part C – asked the applicant’s citizenship at birth. The applicant answered ‘Afghan’. The notice claims the information was incorrect because the applicant did not provide any documentary evidence with his protection visa application to support his claimed Afghan nationality. On 16 December 2015 the applicant provided an original copy of an Afghan Identity document (Taskera) to the Department. The document was examined by the Document Examiner Unit and a copy sent to the Identity Checking Unit (IDCU) within the Ministry of Interior (MOI) Afghanistan. Both investigations deemed the Taskera to be non-genuine. In response the applicant claimed that he sent his wife to Afghanistan (Kabul) to obtain a Taskera and she obtained it from a friend named [name], who is a government officer in Kabul. The applicant did not provide evidence in support of his claim the Taskera was genuinely issued. Afghan authorities confirm it is not genuine.

29. Question 22 of Part C – asked the applicant his current citizenship. The applicant answered ‘Afghanistan’ and that he acquired it at birth ‘[on date]’. The notice claims the information is incorrect because the applicant did not provide any documentary evidence in his protection visa application to support his claimed Afghan nationality. As detailed above the Taskera provided by the applicant was found to be not genuine. The applicant entered Pakistan in 1980 and obtained a Pakistani NIC in the name [Alias 1] and is a Pakistani citizen. His daughter [Daughter A’s] birth certificate issued in [year] confirms the applicant was registered as a Pakistani citizen since this time. It appears the applicant was a Pakistani citizen when he lodged his protection visa application.

30. Question 23 of Part C – asked the applicant if he held any other citizenship or was a national of any other country. The applicant answered ‘No’. The notice claims the information is incorrect because since he entered Pakistan in 1980 and obtained a Pakistani NIC he has been a Pakistani citizen.

31. Question 40 of Part C – the applicant said he is seeking protection so he does not have to return to Afghanistan. The notice claims the information is incorrect because he has been a Pakistani citizen since approximately 1980 and he does not need to return to Afghanistan and has the right to reside in Pakistan where he lived for nearly 30 years prior to travelling to Australia.

32. Question 41 of Part C – asked the applicant why he left Afghanistan. The applicant said ‘refer to my attached statement’ [statutory declaration dated 1 August 2009] in which he provided the following information relevant to answer this question:

    i.Approximately 20 years ago [1989] his two brothers travelled to Kabul to transport goods and were killed by the Pashtuns.

    ii.Approximately 14 years ago [1995], when the Taliban took control of his area, they stopped the bus near Kalat and forced all Hazara passengers, including the applicant, to get out of the vehicle. They shot four Hazara passengers on the spot, the applicant was wounded. He was taken home by another driver and it took months to recover from his injuries.

    iii.Approximately, eight years ago [2001] he escaped with his family from Afghanistan to Quetta Pakistan because in Afghanistan the Taliban were attacking Hazara homes and taking away people’s daughters.

    iv.In 2001 he travelled from Pakistan to [Country 1] where he worked for two years while his family remained in Quetta Pakistan.

    v.In [Country 1] one day he was asked by the police to show proof he could work legally. He did not have any documents so he was deported to [a named location]. He returned to Pakistan via the [specified] border. He worked for two years in a [business]. He was caught a few times by the Pakistani police and paid them money to be left alone.

    vi.He returned to Afghanistan in 2005. He intended to arrange for his family to join him and return to Afghanistan from Pakistan but could see how the Taliban forces were becoming stronger by the day. In Pakistan, Hazaras were being killed daily by the Taliban.

    vii.He left his village in Afghanistan in February 2009 due to fear for himself and his family and returned to Pakistan where he arranged his departure to Australia.

33. The notice claims the information is incorrect because he advised the Citizen delegate that he and his family left Afghanistan and moved to Pakistan in 1980. The admission contradicts and detracts from the credibility of the following key claims in his protection visa application, of the circumstances which led to him leaving Afghanistan:

    ·     His brother was killed travelling to Kabul [in 1989]

    ·     The Taliban took over his area and shot and wounded him [in 1995]

    ·     The applicant later fled Afghanistan because he feared his daughters being taken by the Taliban [in 2001].

34. Questions 42, 43 & 44 of Part C – asked the applicant what he fears may happened to him if goes back to Afghanistan, who he thought would harm/mistreat him if he went back to Afghanistan and why he thinks this would happen to him if he went back. The applicant answered ‘refer to my attached statement’. In the statement he feared the Taliban and Pashtuns because he is Hazara and Shia.

35. The notice claims the information is incorrect because:

    ·     He did not experience harm/mistreatment from the Taliban and Pashtuns in Afghanistan between 1980 and 2001 as claimed because he and his family left Afghanistan years earlier in 1980 and those claimed incidents did not occur.

    ·     He is a Pakistani citizen and has been since approximately 1980. He did not need to return to Afghanistan, he has the right to reside in Pakistan where he lived for nearly 30 years prior to travelling to Australia.

36. Question 45 of Part C – asked the applicant whether he thought the authorities of Afghanistan can and will protect him if he went back, and if not why not. The applicant answered ‘refer to my attached statement’. In his statement the applicant said that the government does not have any control of Afghanistan, they are not willing to protect him because they are Pashtuns themselves and are trying to get the Taliban inside the government. The notice claims the information is incorrect because the applicant is a Pakistani citizen and has been since 1980. He did not need to return to Afghanistan and avail himself of the protection of the Afghan authorities, he has the right to reside in Pakistan where he lived for nearly 30 years prior to travelling to Australia.

37. The s.107 notice invited the applicant to comment on the possible non-compliance set out in the notice and whether his visa should be cancelled.

38. The applicant responded to the s.107 notice on 31 January 2018 and provided the following information:

    ·     He maintained that his correct name is [the applicant’s name] and [name] is his family name.

    ·     He was being truthful in his visa application when he said he had never obtained a Taskera in Afghanistan at the time.

    ·     His Pakistani identity documents list his name as [Alias 1]. He obtained the document with the assistance of an agent who had a good reputation who put his name down as [Alias 1] to comply with the usual naming practices in Pakistan. The applicant believes that the agent obtained the document through correct channels and the documents were properly recorded in the government office.

    ·     He left Afghanistan with his family in the 1980’s.

    ·     The things he said in his protection visa application regarding the reasons for claiming protection were based on what he had been told about information that was important to help him obtain refugee status (therefore question 41 to 45 are incorrect).

    ·     He agrees that [Son A] and [Daughter A] are his biological children and that [Daughter A] is residing in Australia. [Ms A] is not his daughter but his daughter-in-law.

    Tribunal hearing

39. The Tribunal questioned the applicant about the non-compliance described in the s.107 notice. The applicant said his name is [the applicant’s name] and he was born in Afghanistan in [a named village in] Daikundi Province in [year]. He departed Afghanistan in about 1980 when he was a young man. He settled in Quetta, Pakistan where he met his wife married and had [number] children. He engaged an agent in Pakistan to obtain his Pakistani NIC. He was told the card was issued in the name [Alias 1] because it was a Muslim name.

40. He said that when his children went to get their NIC in Pakistan they were told his card was ‘blocked’. He said it happened two, three years ago.

41. In post hearing submissions the Tribunal was provided with a copy and translation of the applicant’s NIC. The Tribunal examined the document and finds it is issued in the name of ‘[Alias 1]’, son of ‘[his father’s name]’. The card displays the applicant’s photograph, fingerprint, address and 13 digit identification number. The card was issued [in] 2001 and expired [in] 2014. The Tribunal finds that the NIC provides some evidence to support the applicant’s claim that his family name is [name].

42. At the hearing the applicant also conceded that he was issued with a Pakistani passport in the name [Alias 1]. He said that he used his passport to depart Pakistan and travel to [another country]. He subsequently travelled illegally to Indonesia and the people smugglers confiscated his passport before he arrived in Australia by boat.

43. The Tribunal notes that the applicant was issued with a Pakistani NIC and passport. The applicant agreed that according to the documents he was Pakistani citizen. He confirmed that all of his children were born in Pakistan and have been issued with Pakistani NICs. It is also evident that his daughter [Daughter A] travelled to Australia on a Pakistan passport and her birth certificate lists the applicant as a citizen of Pakistan by reference to his NIC.

44. The Tribunal has examined the various Pakistani documents located on the Department’s file. The Tribunal finds that there are a number of discrepancies in the way the applicant’s name appears. For example:

    ·     [Daughter A’s] Pakistani wedding certificate (dated [in] August 2005) refers to the applicant as ‘[variant of Alias 1]’, son of [his father’s name]. 

    ·     [Daughter A’s] Pakistani passport issued in 2003 describes her father as ‘[another variant of Alias 1]’.

    ·     [Daughter A] was issued with a Pakistani police clearance certificate as part of her Australian visa application. The certificate issued [in] 2006 refers to the applicant as ‘[further variant of Alias 1]’.

    ·     [Daughter A’s] Pakistan birth certificate issued in [year] describes the applicant as ‘[repeated variant of Alias 1]’ and refers to the applicant Pakistani NIC. The Tribunal finds that enquiries made by the Department regarding the NIC number detailed on the certificate suggest it is not genuine.

45. The Tribunal questioned the applicant about his Afghan identity documents. The applicant said the Department asked him for the Taskera as part of his Citizenship application. He did not have any Afghani documents. In about 2015 he sent his wife to Kabul to obtain a Taskera. The Tribunal observed that document was found not to be genuine by the Department. The Tribunal finds that it should have been obvious to the applicant that it was not possible for his wife to legally obtain a genuine Taskera in his name without any identification documents in circumstances when he was in Australia at the time.

1. The applicant’s representative submitted that in Pakistan thousands of Afghans were issued with false NIC, by the National Database and Registration Authority.[1] It was submitted that he has never given up his Afghan nationality, and still remains an Afghani, therefore he could never be a Pakistani citizen. It was submitted that obtaining a false Pakistani NIC was a ‘means to an end’ to be able to live in Pakistan safely without jeopardising his safety.

   [1] NADRA Issued Millions Fake ID Cards, Reveals Report Frontier Post (Web Page 30 April, 2019 >

   The Tribunal has had regard to country information and finds that even though the applicant has Pakistani documents suggesting he is a Pakistani citizen, he cannot be a dual citizen according to Afghan and Pakistani law.[2]

   [2] Report on Citizenship Law: Pakistan December 2016 RSCAS/EUDO-CIT-CR 2016/13 EUDO Citizenship Observatory

2. In assessing the applicant’s evidence the Tribunal has had regard to the following information regarding the Afghan Hazara ethnic minority group residing in Pakistan. The Tribunal finds the information is relevant because it supports the applicant’s claim that many Afghans have obtained false Pakistani identity documents and despite living in Pakistan for prolonged periods they technically remain Afghan nationals:

   The Hazara ethnic minority has a long history of persecution due to their Shia faith. In Afghanistan they are easily identifiable as a result of their Asiatic features and their use of the Persian dialect of Hazaragi. Hazaras have often fled to neighbouring countries: in 2015, the UNHCR estimated there were 2.7 million Afghan refugees registered in Pakistan and Iran, and the unregistered population is unknown.

   At least four decades of such border-hopping means some people who are technically Afghan nationals were born and raised outside of that country: Hazaras, for example, have been present in Pakistan for several generations. Afghans are known to move easily between states for security or economic opportunity. This limits their access to even arbitrary and poorly secured certificates of identity from their country of origin, while in some cases allowing them to build a number of documents from a country they reside in illegally. Similarly, some claiming status as an Afghan Hazara may indeed be Pakistani or Iranian, raising issues not only of identity but also of effective protection.

   Hazaras have traditionally formed a significant proportion of Afghan asylum seekers arriving in Australia. Of particular concern to Australia are Pakistani citizens claiming to be Afghan. In Afghanistan the most prevalent identity document is a taskera certificate, one page outlining basic narrative details such as name, date of birth and birthplace alongside a photograph. The format is non-standard and lacks any modern security features. A signature and stamp are often affixed by a local elder as an endorsement. Further, a taskera certificate is often accepted for preparing official documents, including Afghan passports.

   The ease with which bogus Afghan documentation can be obtained — in either Afghanistan or Pakistan — makes it difficult to either verify or refute a claimed identity. A 2011 report by the US Embassy in Kabul noted that ‘Most, if not all, Afghan documents are ripe for fraud ... they remain handwritten, usually unsealed and quite commonly do not contain true information’.

   Perhaps unsurprisingly, applicants who list Afghanistan as their country of origin demonstrate high rates of fraudulent behaviours compared to other cohorts. However, this is not necessarily representative of active attempts to deceive Australian authorities, but rather an indicator of how easily fraudulent documents can be obtained in Afghanistan as well the prevalence and normality of fraudulent documents.  It highlights the difficulty for asylum seekers in understanding what a bogus, non-genuine, or fraudulent document is, and what is required by Australian authorities and why.[3]

   [3] Comparative international approaches to establishing indemnity in undocumented asylum seekers, Migration and Border Policy Project Working Paper, No.8, April 2018, Kristian Hollins p.4

3. The Tribunal also notes that when questioned by the delegate at his protection interview the applicant was able to answer questions about the geography of his home region, Hazara traditional clothing, food and the Shia religion. The applicant declared in his protection visa application that he speaks Hazaragi. His protection interview and the Tribunal hearing were carried out with assistance of an interpreter in the Hazaragi language. The Tribunal also finds the applicant has the distinct visual features shared by the Hazara ethnic group.

4. The Tribunal has regard to the applicant’s narrative, physical appearance, language and the country information detailed above and accepts that he is from the Hazara ethnic group and that he was born in Afghanistan. He is an Afghan national who left Afghanistan in the 1980’s following the soviet invasion.

   Conclusions on compliance

5. The Tribunal finds the applicant provided incorrect information in his protection visa application when he:

   ·     failed to disclose that he had a daughter-in-law called [Ms A] residing in Pakistan (Q.9 Part B).

   ·     declared that he did not have any close relatives in Australia when in fact his biological daughter [Daughter A] was in Australia (Q.10 Part B).

   ·     failed to disclose that he had a son called [Son A] living in Pakistan (Q.11 Part B)

   ·     failded to disclose that he was granted Pakistani citizenship (Q.22 and 23 Part C).

   ·     declared that was seeking protection in Australia so that he did not have to return to Afghanistan (Q.40 Part C).

6. The Tribunal finds the applicant provided incomplete information in his protection visa application when he:

   ·     failed to advise the Department that he was known by another name when his Pakistani NIC was issued in the name of [Alias 1] (Q4. Part C).

7. For these reasons, the Tribunal finds that there was non-compliance with s.101(a) and s.101(b) by the applicant in the way described in the s.107 notice.

   Should the visa be cancelled?

8. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

9. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Migration Regulations 1994. Briefly, they are:

   The correct information

10. The Tribunal accepts that the applicant’s real name is [the applicant’s name], who was born in [year], Daikundi Province Afghanistan. He is an Afghan national of Hazara ethnicity and Shia Muslim religion.

11. His daughter is [Daughter A] who travelled to Australia on a Pakistani passport and resides in Australia. He has a son named [Son A] living in Pakistan who is married to [Ms A].

12. The Tribunal has had regard to the country information and finds that as an Afghan refugee in Pakistan the applicant was able to obtain a Pakistani NIC by paying a bribe and providing false information to Pakistani government officials. The Tribunal accepts the applicant’s evidence that the NIC was issued in the name [Alias 1] but the applicant’s real name is [the applicant’s name] as disclosed in his protection visa application.

13. The Tribunal has had regard to the country information which finds that the applicant was able to use the NIC and obtain a Pakistani passport which he subsequently used to depart Pakistan.[4] The Tribunal finds the applicant was recognised as a Pakistani citizen by Pakistani authorities, however, his citizenship was obtained by providing false information to the Pakistani authorities. 

    [4] Report on Citizenship Law: Pakistan December 2016 RSCAS/EUDO-CIT-CR 2016/13 EUDO Citizenship Observatory

14. The Tribunal finds the applicant did not experience harm/mistreatment from the Taliban and Pashtuns in Afghanistan between 1980 and 2001 because he and his family left Afghanistan years earlier in 1980 and the claimed incidents detailed in his declaration did not occur.

15. The Tribunal finds the applicant was not escaping persecution in Afghanistan at the time he applied for protection. He did not need to return to Afghanistan; he had the right to reside in Pakistan where he had lived for nearly 30 years prior to travelling to Australia.

16. The content of the genuine document (if any). This prescribed circumstance is not relevant in the present case because the s.107 notice relied solely on s.101, not on s.103 (relating to bogus documents).

17. Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document. As detailed above the Tribunal finds that the applicant was recognised as a citizen of Pakistan at the time he applied for protection. The applicant did not declare that he feared harm in Pakistan and there was no threat of the applicant being forced to return to Afghanistan at the time he applied for his protection visa. As a consequence of the incorrect information provided by the applicant his protection claims were assessed against Afghanistan as the receiving country.  The Tribunal finds the applicant was not escaping persecution in Afghanistan at the time he applied for protection.

18. He did not experience harm/mistreatment from the Taliban and Pashtuns in Afghanistan between 1980 and 2001 as claimed because he and his family left Afghanistan years earlier in 1980. He did not need to return to Afghanistan, he has the right to reside in Pakistan where he lived for nearly 30 years prior to travelling to Australia. He married in Pakistan and his children were born in Pakistan and are citizens of Pakistan. The applicant’s wife and the remainder of his children continue to reside in Pakistan where they live in his son’s home. The evidence before the Tribunal is that the applicant voluntarily returned to Pakistan in March 2012 and July 2015 travelling on a Titre de Voyage to attend his daughter’s wedding.

19. The Tribunal finds the applicant provided incorrect information to ensure a migration advantage.

20. The Tribunal also finds that had the applicant provided incorrect information regarding his daughter being in Australia at the time he lodged the application. This would likely have resulted in a finding that he was not owed protection.

21. The circumstances in which the non-compliance occurred. The incorrect information was provided by the applicant in his protection visa application lodged on 14 September 2009. The Tribunal is of the view that there is no excuse for the applicant providing incorrect information in his protection visa application. The Tribunal does however accept that there are explanations which mitigate the applicant’s conduct.

22. The Tribunal accepts that that it is not uncommon for IMA seeking protection in Australia to have limited access to documentation that can be used to verify their identity to an administrative standard. The lack of identity documents can be attributed to a number of factors such as the failure of governments in the country of origin, forced displacement or destruction of documentation.

23. The Tribunal accepts that the problem of undocumented refugees is exacerbated due to porous and unregulated borders between Afghanistan and Pakistan. As detailed above country information confirms that decades of border-hopping between Afghanistan and Pakistan means some people, such as the applicant, who are technically Afghan nationals were raised outside of that country and may not have access to legitimate identity documents.

24. In the circumstances, the Tribunal accepts that the applicant’s actions in obtaining a false Taskera are not necessarily representative of active attempts to deceive Australian authorities, but rather an indicator of how easily fraudulent documents can be obtained as well the prevalence and normality of fraudulent documents in that part of the world.

25. The applicant claims that when he arrived in Australia in 2009 he heard and believed rumours that he wold be deported if he disclosed his Pakistani NIC and the way he obtained it. He claims he did not disclose his Pakistani citizenship because he was told he would not be accepted as a refugee.

26. The applicant claims he did not refer to his biological children ([Son A] and [Daughter A]) because he considered the question only referred to children who were dependent on him. As both those children were married at the time and had left his household they were no longer dependent on him. He declared that [Ms A] was his daughter because it would make it easier to sponsor his son to Australia.

27. He claims he made those claims in his application because of the lack of information available to him, lack of guidance and misunderstanding. He claims that if he had the ability to know about immigration laws then he would never have said the things he is regretting now.

28. The Tribunal finds it regrettable that many protection visa applicants take advice from members of their own community who do not have relevant qualifications. Having said that, the Tribunal is also aware that some applicants seek out advice and engage agents to facilitate migration outcomes or to simply prolong the time they can stay in Australia.

29. The present circumstances of the visa holder: The applicant is [age] years old. His wife and [number] of his children reside in Pakistan. He is in receipt of Centrelink benefits and claims to live alone. The applicant said he suffers from a number of medical complaints and is taking medication for chronic back pain. The Tribunal provided the applicant with time after the hearing to obtain updated medical and psychological evidence. In post hearing submissions the applicant provided various medical reports confirming he suffers from multiple health issues and is being prescribed medication to manage his condition. It was submitted that in 2015 he was diagnosed with [conditions].

30. Correspondence prepared by a Registered Nurse/Trauma Counsellor from [a named agency] dated [in] February 2018 states that the applicant has also received support from a psychologist at [a named] Health Service and his local GP.

31. He worked for a brief period [in two occupations]. He claims his age has prevented him from engaging in full time work in Australia. He has been sending money back to his family in Pakistan.

32. The Tribunal finds it surprising that his daughter did not attend the hearing and did not provide any evidence in support of his application. The applicant said he said that he does not have a close relationship with his daughter and son-in-law in Australia. He claimed he borrowed money from her and this has caused family tension.

33. The Tribunal was provided with a reference from [a community group] confirming the applicant has been a member since 2013. The letter states that some of the members have known the applicant since he was in Afghanistan.

34. The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act. The Tribunal notes that the applicant did respond to the s.107 notice and acknowledged that he had provided incorrect information as detailed above.

35. Any other instances of non-compliance by the visa holder known to the Minister. The Tribunal finds the applicant provided incorrect information in his protection visa application regarding his passport and travel to Australia. Specifically he declared in his application that he was given a false ‘yellow’ coloured passport by the people smugglers to enable him to depart Pakistan and that he did not know what type of passport he was issued with. As detailed above, the applicant conceded at the hearing that he departed Pakistan on a Pakistani passport.

36. The time that has elapsed since the non-compliance. The applicant applied for the protection visa approximately 10 and half years ago. His protection visa was cancelled in May 2018. The Tribunal finds that a significant period of time has passed since the non-compliance. The Tribunal accepts that the long separation from his family and the uncertainty surrounding his visa cancellation and possibility of deportation has impacted on his psychological health and contributed to feelings of anxiety and depression.

37. Any breaches of the law since the non-compliance and the seriousness of those breaches. The delegate’s decision records there are no known breaches of the law since the non-compliance occurred.

38. Any contribution made by the holder to the community. It was submitted that the applicant is active among the Australian Hazara community. When questioned at the hearing the applicant did not provide any information about the contribution he has made to the community.

39. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual (PAM3) ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

40. If the applicant’s visa is cancelled, he will become an unlawful non-citizen and be liable to be detained. The operation of s.46A(1) of the Act has the effect that he will be statute barred from making another application for a protection visa. If detained, he is required to be removed from Australia as soon as reasonably practicable, notwithstanding any finding that he is owed non-refoulement obligations by Australia[5].

    Whether the cancellation would lead to the person’s removal in breach of Australia’s non-refoulement obligations under relevant international agreements

    [5] DMH16 v MIBP [2017] FCA 448

41. The Department’s Policy Guidelines set out that Australia is party to three international treaties that generate explicit or implicit non-refoulement obligations, including the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment. The Policy Guidelines set out that cancellation in such circumstances must be consistent with Australia’s obligations under these treaties.

42. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

43. In relation to the Refugees Convention, the Policy Guidelines provide that:

    Articles 32 and 33 of the Refugees Convention must be considered before making a decision whether to cancel a visa, as cancellation in Australia may lead to removal from Australia and the possibility of refoulement (that is, removal to a country where the person's life or freedom would be threatened because of a Refugees Convention reason, or removal to a country which is likely to remove the person to another country where the person's life or freedom would be threatened because of a Refugees Convention reason).

    Refoulement is prohibited under Article 33 of the Refugees Convention unless:

    -    there are reasonable grounds for regarding the refugee as a danger to the security of the country in which they are in; or

    -    the refugee has been, by a final judgment, convicted of a particularly serious crime and also constitutes a danger to the community in which they are in.

1. In this case the delegate’s decision records that the Department has not conducted an International Treaties Obligation Assessment.

   Country of nationality

2. The first issue to be determined is the country or countries against which those claims are to be assessed. For the purposes of Article 1A(2), applicants who have a nationality must be considered in relation to their country or countries of nationality. 

3. Whether a person has a particular nationality is a question of fact for the decision maker on the available evidence.[6] As detailed above the Tribunal accepts the applicant is an Afghan national by birth who resided in Pakistan before he arrived in Australia. The Tribunal finds he is a national of Afghanistan who was issued Pakistani identity documents because he provided false information to the Pakistani authorities.

   [6] AZK15 v MIBP [2015] FCA 1444

4. The Tribunal finds the applicant was born in Afghanistan, and is a national of that country. The Tribunal finds that Pakistani law does not allow dual Afghan and Pakistani citizenship.[7]

   [7] s. 14 of the Pakistan Citizenship Act, 1951 [Pakistan], 13 April 1951, available at: ‘The Pakistan Citizenship

   Act, 1951 (as amended to 2000)’, Government of Pakistan, 15 August 2016, CIS38A80123108

5. The Tribunal has had regard to the Pakistani Citizenship Act and also notes that a person can be deprived of citizenship if he obtains citizenship of Pakistan either fraudulently or by misrepresentation.[8] The Tribunal has had regard to reports which confirm that in 2012 the Pakistani authorities arrested about 278 Afghans for possessing Pakistani NIC. The report confirms that the NIC were not fake but the process through which they were acquired was fraudulent.[9]

   [8] Report on Citizenship Law: Pakistan December 2016 RSCAS/EUDO-CIT-CR 2016/13 EUDO Citizenship Observatory p.13 Dual nationals: 278 Afghans held for possessing Pak CINCs, Published by the Express Tribune, May, 14, 2012

6. In conclusion, accepting the applicant was born in Afghanistan and having regard to the laws of Pakistan which prevent dual citizenship the Tribunal has assessed the applicant’s claims against Afghanistan as the country of reference.

   Well-founded fear of persecution

7. The applicant claims to have a well-founded fear of persecution throughout Afghanistan and Pakistan primarily for reasons of his Hazara ethnicity and his Shia religion. It is not in dispute that the applicant is of Hazara ethnicity and Shia Muslim religion.

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration - Complementary Protection Guidelines and Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. In this case the relevant DFAT assessment is its Country Information Report Afghanistan dated 27 June 2019.

   The applicant’s fear of harm in Afghanistan

9. The applicant claims to have a well-founded fear of persecution throughout Afghanistan primarily for reasons of his Hazara ethnicity and his Shia religion. For the reasons set out below, and having regard to the most recent DFAT report dated 27 June 2019 as well as other sources discussed below, the Tribunal accepts that to be the case.

   The general security situation in Afghanistan

10. The United Nations Assistance Mission in Afghanistan (UNAMA) has a bleak appraisal of the current security situation in Afghanistan:

    The UN Assistance Mission in Afghanistan (UNAMA) is gravely concerned about the unprecedented levels of violence harming civilians during the third quarter of 2019. From 1 July to 30 September 2019, UNAMA documented the highest number of civilian casualties that it has recorded in a single quarter since it began systematic documentation in 2009. While in the first half year of 2019 UNAMA documented a decrease in civilian casualties in comparison to previous year, in July, August and September extreme levels of violence brought the civilian casualty levels back to the unacceptable high levels of previous years. Furthermore, in the month of July, UNAMA documented the highest number of civilian casualties that the Mission has recorded in a single month. For the sixth year in a row, UNAMA has recorded more than 8,000 civilian casualties in the first nine months of the year, underlining that Afghans have been exposed to extreme levels of violence for many years, despite the statements of parties to the conflict to prevent and mitigate harm to civilians. [10]

    [10] UNAMA Quarterly Report on the Protection of Civilians in Armed Conflict 17 October 2019  The Tribunal finds that the UNAMA report echoes Professor Maley’s warning that it is essential to appreciate that the situation in Afghanistan is extraordinarily fluid, and assessments of the situation made even quite recently do not necessarily provide an accurate picture of the situation in late 2019 and beyond.[11]

    [11] On the Return of Hazaras to Afghanistan, Professor William Maley, AM, 8 October 2019.

    101.   The Tribunal finds that DFAT’s report also indicates that the security situation in Afghanistan is dangerous, complex and highly fluid, varying considerably by location. It reports that a number of anti-government elements (AGEs) remain engaged in a violent armed insurgency against the government and its international partners and the emergence of an Islamic State affiliate in pockets of eastern Afghanistan as well as Islamic State in Khorasan province (ISKP) has been a growing concern for the international community. DFAT reports that considerable ethnic and intra-ethnic tensions exist throughout the country, separate from the continuing armed conflict and no part of Afghanistan can be considered free from conflict-related violence.[12]

    [12] Ibid at 2.52 – 2.59

    102.   The Taliban remains the most significant AGE. AGEs regularly conduct attacks across Afghanistan, most commonly targeting government institutions, political figures, the ANDSF and other Afghan and international security forces, demonstrations, diplomatic missions and international organisations.  Mosques, schools, hospitals and other civilian targets are reportedly also vulnerable to attacks including small arms fire, rocket fire, suicide bombings, car bombs, IEDs and combinations of these methods. DFAT reports that while insurgents generally direct attacks against specific targets, the methods can be indiscriminate and often result in civilian casualties[13].

    [13] DFAT Country Information Report Afghanistan 27 June 2019  at 2.52 – 2.59

    103.   DFAT reports that criminals and insurgents tend to target people who appear wealthy, but ethnic targeting can play a role in the selection of victims once an abduction is in progress and Hazaras are particularly at risk in this regard. DFAT assesses that while abduction travelling by road is a risk for Afghans of all ethnicities, Hazaras remain particularly vulnerable to being selected for abduction or violence[14].

    [14] DFAT Country Information Report Afghanistan 27 June 2019 at 2.70 – 2.74

    104.   In relation to attacks on Hazaras, the European Asylum Support Office (EASO) states: 

    Attacks by insurgent groups, in particular by ISKP, have significantly affected the Hazara population in 2018. Attacks by ISKP targeted places where Hazara/Shia gather, such as religious commemorations or political demonstrations, and sites in Hazara-dominated neighbourhoods in large cities, including Kabul and Herat. Such attacks could be related to their religion (see the profile on Shia). Among other reasons, the ISKP also reportedly targets the Hazara due to their perceived closeness and support for Iran and the fight against the Islamic State in Syria.[15]

    [15] European Asylum Support Office Country Guidance Afghanistan June 2019 p.69

    105.   The EASO report provides the following information on the current security situation in the Uruzgan:

    Throughout 2018, Taliban militants were active in the province. They expanded their operations to areas which until then had been spared, like the district of Khas Uruzgan. Sources also reported activity of ISKP in the province, particularly in Chora district.

    Four districts of Uruzgan province are categorised by LWJ as contested and one is categorised as under Taliban control.

    According to GIM, 220 incidents related to insurgents were reported in the period of January 2018 – February 2019 (average of 3.7 incidents per week).

    Examples of incidents include intense battles between local Hazara militia and the Taliban. The fighting, accounting for many casualties and internally displaced people, mostly among the Hazara civilian population, went on almost one month until late November 2018. There are also reports of travellers being kidnapped and later killed by the Taliban. Ongoing military operations in order to clear the Kandahar-Uruzgan highway from Taliban insurgents were reported in February 2019.[16]

    [16] European Asylum Support Office Country Guidance Afghanistan June 2019  p.117

    The applicant’s fears on the basis of his ethnicity and religion

    106.   Professor Maley reports that when the security situation in Afghanistan deteriorates, ethnic minorities can easily find themselves in the firing line. In particular he states ‘there is a long history of persecution of and discrimination against members of the Hazara Shia minorities in Afghanistan’. He states that given the fluidity, ‘it is a serious mistake to conclude that Afghanistan is safe for Hazaras.’[17]

    [17] On the Return of Hazaras to Afghanistan, Professor William Maley, AM, 8 October 2019.

    107.   DFAT reports that because Hazara are overwhelmingly Shia and widely perceived as being supporters of the government, their risk profile should be assessed on the same basis as ‘People associated with the government or international community’ and ‘Shias’[18].

    [18]DFAT Country Information Report Afghanistan 27 June 2019 at 3.7 – 3.16

    108.   In relation to the risk profile for ‘People associated with the government or international community’, DFAT reports that insurgent and terrorist groups, particularly the Taliban, have openly targeted Afghans of all ethnicities working for, supporting or associated with the government and/or the international community. DFAT assesses such persons face a high risk of violence perpetrated by AGEs, particularly the Taliban. DFAT notes that given the methods of attack are often highly indiscriminate in nature, this risk applies whether or not the person is the specific target of the attack.[19]

    [19] DFAT Country Information Report Afghanistan 27 June 2019 at 3.42 – 3.46

    109.   In relation to the risk profile for ‘Shia’, the EASO reports that the ‘Shia community is disproportionately represented among civilian casualties in Kabul and Herat. There are reports of attacks against the Shia, especially on places where Shia gather, such as mosques, and during religious commemorations and political demonstrations. In 2018, the majority of ISKP attacks on religious sites reportedly targeted Shia communities’.[20]

    [20] European Asylum Support Office Country Guidance Afghanistan June 2019 p.70

    110.   DFAT also reports that since mid-2016, militants have conducted an ongoing series of major attacks against Shia targets, including political demonstrations and religious gatherings. The first such attack occurred in Kabul in mid-2016, killing 85 people and injuring 413 others. In claiming responsibility for the attack, ISKP emphasised that it was religiously motivated. UNAMA documented a further four attacks targeting Shia mosques and communities in 2016, killing 77 civilians and injuring 205. In 2017, the number and scale of attacks on Shias increased, with eight documented religiously motivated attacks against Shia places of worship, resulting in 161 deaths and 252 injuries. In 2018 there were a further 19 documented attacks against Shias, resulting in 223 deaths and 524 injuries. Most of the 2018 attacks reportedly occurred in Shia majority or ethnic Hazara neighbourhoods in Kabul city[21].

    [21] Ibid at 3.29 – 3.35

    111.   In June 2019, DFAT assessed that Shia face a high risk of being targeted by ISKP and other militant groups based on their religious affiliation when assembling in large and identifiable groups during demonstrations or major religious festivals, and the risk increases for those living in Shia majority or ethnic Hazara neighbourhoods in major cities including Kabul[22].

    [22] Ibid at 3.29 – 3.35

    112.   Shortly after the DFAT report was published, a suicide bomber killed 63 people and wounded 182 in an attack on a wedding reception at a west Kabul wedding hall, in a minority Shia neighbourhood. Islamic State later claimed responsibility for the attack[23].

    [23]  In August 2019, the UK Home Office reported that attacks by insurgent groups, particularly ISKP, significantly affected the Hazara population in 2018. It notes that such attacks target places that Hazara Shias gather, such as religious commemorations or political demonstrations, and sites in Hazara neighbourhoods in large cities including Kabul and Herat. It reports that ISKP target Hazaras due to their perceived affiliation to the Afghan government, closeness to Iran and the fight against the Islamic State in Syria. It reported instances of Hazara civilians being abducted or killed while travelling on the roads.[24]

    [24] UK Home Office Country Policy and Information Note Afghanistan: Anti-government elements (AGEs) August 2019 at

    114.   In view of the applicant’s personal profile and the evidence outlined in the country information cited above indicating the strong and growing presence of the Taliban in much of Afghanistan, the potential for further sectarian violence, the increased presence of ISIS and the ongoing ethnic and sectarian tensions and discrimination against Hazaras and Shias noted by Professor Maley, the Tribunal finds that the threat to the applicant is not localised and a real chance of persecution applies to all areas of Afghanistan. The Tribunal finds that relocation is not an option available to the applicant to avoid the risk of persecution.

    115.   For the reasons set out above, the Tribunal accepts the applicant has a well-founded fear of persecution for the essential and significant reasons of his Shia religion and Hazara ethnicity if he is returned to Afghanistan, now or in the reasonably foreseeable future.

    116.   The Tribunal finds that the applicant comes within Article 1A(2) of the Refugees Convention and his removal from Australia to Afghanistan would be in breach of Article 33 and contrary to Australia’s non-refoulement obligations.

    Mandatory legal consequences to a cancellation decision

    117.   If the applicant’s visa remains cancelled, he will be an unlawful non-citizen and may be detained and liable for removal.  There are provisions in the Act which would prevent him from making a valid application for any visa without the Minister personally intervening.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members)

    118.   As detailed above the Tribunal accepts that the applicant comes from an ethnic and religious minority group that continues to face persecution both in Afghanistan and in Pakistan.

    119.   DFAT’s most recent country information report states Hazaras in Quetta, face significant risk of violence.

    120.   It is reported that Lashkar-e-Jhangvi (LeJ), a Sunni paramilitary terrorist group, conducted seven terrorist attacks in 2018 (compared to 10 in 2017. LeJ faction, LeJ Al-Alami, also conducted eight terrorist attacks in 2017). LeJ primarily targets Shia, especially the Hazara community in Quetta. In total, the two groups were responsible for killing 132 people. Reports also confirm that ISIL is active in Pakistan, and its regional affiliate Islamic State in the Khorosan Province is supported by LeJ as a proxy in Afghanistan to target Shia.

    121.   An NCHR official report released in March 2018 stated terrorism-related incidents in Quetta between January 2012 and December 2017 had killed 509 Hazaras and injured 627. These figures are likely to understate actual casualties. The Hazara community claims that, between 1 January 2017 and 30 April 2018, 17 attacks had killed 29 and injured 18 Hazaras. Seven of these attacks, killing nine and injuring five, occurred between 1 January and 29 April 2018. Community statistics accord with international media reports, which note between March and mid-April 2018, at least seven people were killed in five attacks against Hazara Shia in Quetta.

    122.   Hazaras report the security situation in Quetta has become so restrictive and the likelihood of attack so high, that they are reluctant to travel outside of or between the two enclaved areas, including for basic services, such as food, education, health care and employment. Consequently, Hazaras have access only to services within enclave walls. Community representatives claim the government does not maintain the basic facilities that exist and that their operations depend on staffing by Hazaras living within the enclaves. The Hazara community also relies heavily on a small number of Hazara vendors who risk their own security to move limited food supplies into Hazara enclaves.

    123.   In conclusion, DFAT assesses that Hazaras in Pakistan face a high risk of violence from sectarian militants because of their religious beliefs. Hazaras face a higher risk than other Shia due to their distinct appearance and to segregation.[25]

    [25] DFAT Country Information Report Pakistan 20 February 2019 [3.27-3.48]

    124.   The Tribunal finds if the applicant was to return to Pakistan or Afghanistan his life would be in danger because of his race and religion.

    EXERCISE OF DISCRETION

    125.   The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

    126.   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

    Christopher Smolicz
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    5Interpretation

    (1)In this Act, unless the contrary intention appears:

    bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:

    (a)    purports to have been, but was not, issued in respect of the person; or

    (b)     is counterfeit or has been altered by a person who does not have authority to do so; or

    (c)    was obtained because of a false or misleading statement, whether or not made knowingly.

    97Interpretation

    In this Subdivision:

    application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.

    passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).

    Note:Bogus document is defined in subsection 5(1).

98Completion of visa application

A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.

99Information is answer

Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.

100Incorrect answers

For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.

101Visa applications to be correct

A non‑citizen must fill in or complete his or her application form in such a way that:

(a)all questions on it are answered; and

(b)no incorrect answers are given or provided.

107Notice of incorrect applications

(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:

(a)    giving particulars of the possible non‑compliance; and

(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:

(i)if the holder disputes that there was non‑compliance:

(A)shows that there was compliance; and

(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:

(A)give reasons for the non‑compliance; and

(B)shows cause why the visa should not be cancelled; and

(c)    stating that the Minister will consider cancelling the visa:

(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or

(ii)if the holder gives the Minister a written response within that period—when the response is given; or

(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and

(e)    informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and

(f)    requiring the holder:

(i)to tell the Minister the address at which the holder is living; and

(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:

(a)    in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or

(b)     otherwise—14 days.

(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:

(a)    visas of a stated class; or

(b)     visa holders in stated circumstances; or

(c)    visa holders in a stated class of people (who may be visa holders in a particular place); or

(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.

(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance

The Minister is to:

(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and

(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect

(1)The Minister, after:

(a)    deciding under section 108 that there was non‑compliance by the holder of a visa; and

(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and

(c)    having regard to any prescribed circumstances;

may cancel the visa.

(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.